In re Estate of Brown

On
Appeal from the County Court Rusk County, Texas Trial Court
No. 15-062P

Before
Morriss, C.J., Moseley and Burgess, JJ.

MEMORANDUM OPINION

Ralph
K. Burgess Justice

Joe Dan
Brown passed away on March 11, 2009. His last will and
testament left all of his property to his wife, Gail Larue
Brown, and named her as independent executrix of his estate.
On March 29, 2009, Gail signed an affidavit of heirship and
election not to probate Brown's will, but filed an
application to probate Brown's will six years after his
death. Pointing to the election and the four-year statute of
limitations to probate a will, Brown's only child, Joe
Frank Brown, contested Gail's application and filed
traditional and no-evidence motions for summary judgment. The
trial court granted Joe's summary judgment motions and
denied and dismissed Gail's application to probate
Brown's will. Gail appeals.

After
carefully reviewing the appellate record in this matter, we
conclude that we are without jurisdiction to hear Gail's
appeal because the trial court had previously entered a
final, appealable order in this case, and Gail did not timely
appeal from that order.

I.Procedural History

On
April 1, 2015, Gail filed "an Application to Probate
Will and for Issuance of Letters Testamentary and Motion to
Withdraw Election not to Probate" (the original
application). Based on the four-year statute of limitations,
[1] Joe
filed traditional and no-evidence motions for summary
judgment, and a hearing on those motions was set for December
15, 2015. On December 14, 2015, one day prior to the hearing
on Joe's motions for summary judgment, Gail filed an
amended application to probate the will as a muniment of
title (the amended application).[2]

The
next day, at the hearing on Joe's motions for summary
judgment, the trial court noted that the amended application
had been filed and asked Joe if he was prepared to go forward
in light of that pleading. Although he objected to the
amended application as being untimely filed, Gail responded
that she did not object to the trial court granting Joe's
motions for summary judgment as to the original application
so long as it did not operate to dismiss the case in its
entirety. Gail asserted that because the amended application
superseded the original application, and because the motions
for summary judgment did not address the amended application,
the trial court's order granting summary judgment should
be limited to the original application only.

With
that understanding, the trial court granted Joe's motions
for summary judgment as to the original application based on
the statute of limitations. The trial court then directed
Joe's attorney to prepare a proposed order granting
Joe's motions for summary judgment as to the original
application based on the expiration of the statute of
limitations, to forward a copy to Gail's attorney for
review, and then to forward the proposed order to the trial
court for signature. Accordingly, by order dated January 26,
2016, the trial court granted Joe's no-evidence and
traditional motions for summary judgment based on the
four-year statute of limitations as to the original
application. The January 2016 order granting summary judgment
states:

IT IS THEREFORE ORDERED ADJUDGED AND DECREED that summary
judgment is GRANTED as to the Application to Probate Will and
for Issuance of Letters Testamentary and Motion to Withdraw
Election not to Probate filed by Gail Brown.

IT IS FURTHER ORDERED ADJUDGED AND DECREED that the
Application to Probate Will and for Issuance of Letters
Testamentary and Motion to Withdraw Election not to Probate
filed by Gail Brown be and is hereby dismissed in its'
[sic] entirety, with res judicata and prejudice as to
refiling of same.

Subsequently,
on February 11, 2016, Joe filed traditional and no-evidence
motions for summary judgment, again based in part on the
statute of limitations, with respect to the amended
application. The trial court held a hearing on those summary
judgment motions on April 27, 2016, and entered summary
judgment in Joe's favor on April 27, 2016, as to the
amended application. Gail subsequently filed her notice of
appeal within thirty days of the trial court's order
granting Joe's summary judgment as to the amended
application.

However,
Gail's notice of appeal was filed more than thirty days
after the trial court granted Joe's motions for summary
judgment as to the original application. Because the language
of the January 2016 order dismissing Gail's application
with prejudice appeared to indicate that it was a final,
appealable order, we notified the parties of our concern that
we may not have jurisdiction to entertain an appeal from the
April order. Specifically, we informed the parties that we
believed Gail was required to file either a notice of appeal,
a motion for reconsideration, or a motion for new trial
within thirty days of January 26, 2016, and that the
clerk's record did not ...

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